Lee (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream, made by the first applicant, with secondary applicants applying as members of his family unit. The core dispute revolved around whether the employer nomination associated with the primary applicant's visa application had been approved. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision to refuse the visa.

The primary legal issue before the Tribunal was whether the primary applicant satisfied the requirements of clause 186.223 of the Migration Regulations 1994, specifically subclause (2), which mandates that the Minister must have approved the nomination. The Tribunal also considered whether the nomination had subsequently been withdrawn and whether there was any adverse information concerning the nominator.

The Tribunal reasoned that the applicant's employer, Eagon Australia Pty Ltd, had made a nomination in which the applicant was identified as a Subclass 457 visa holder. However, the Department had refused to approve this nomination on 25 May 2016, and there was no evidence before the Tribunal that this refusal had been revoked or set aside. Despite requests for information regarding the nomination's approval status or any pending review, no response was received from the applicants, who also failed to appear before the Tribunal. Consequently, the Tribunal found that the relevant nomination had not been approved, meaning the applicant did not meet the criterion in cl.186.223(2). As the primary applicant failed to meet a necessary visa criterion, the Tribunal affirmed the decision not to grant the visa to him and, by extension, to the secondary applicants.